CASE STUDIES | McNab v. United States
A Lobster Tale: Invalid Foreign Laws Lead
to Years in U.S. Prison
(November 2003 Case Study)
Supreme Court is currently considering whether to take the case of four
businesspeople sent to prison for importing lobster tails from Honduras.
Their convictions are predicated on supposed violations of the Lacey Act,
which makes it a crime to import “fish or wildlife taken … in
violation of any foreign law.” Here, the foreign laws are Honduran
fishing regulations that have been declared null and void in Honduras,
but are somehow still being enforced by American federal courts.
all began with a supposed anonymous fax to the National
Marine Fishery Service (NMFS) on February 3, 1999. The mystery fax
alleged that Honduran businessman David McNab had a shipment of “undersized
(3 & 4oz) lobster tails” scheduled to arrive in Bayou La Batre,
Alabama on February 5, 1999. The fax also said that the lobster should
be packed in cardboard boxes, but was in fact packed in clear plastic bags.
on this strange, anonymous message, NMFS agents waited for McNab’s
ship and captured it on arrival. With no explanation, the federal government
held the entire ship for several weeks and then off-loaded and transported
McNab’s 70,000 pounds of Caribbean spiny lobster to a government
freezer in Florida. There the lobster tails languished for six months while
NMFS agents searched Honduran regulations for some reason to keep the lobster
meat and prosecute the importers and distributors.
numerous phone calls, letters, and trips to Honduras, the NMFS focused
on three provisions. The first details the processing and packaging of
fish harvested in Honduran waters. This 1993 regulation, promulgated pursuant
to a 1973 statute, included the mention of packaging in cardboard boxes.
The second regulation prohibits harvesting any lobsters with tails shorter
than 5.5 inches. This must have surprised the NMFS agents, since the market
price lists published by NMFS include prices for two and three ounce Caribbean
spiny lobsters from Honduras. A government expert acknowledged at trial
that these little lobsters would all have tails shorter than 5.5 inches.
The third Honduran provision prohibits destroying or harvesting “eggs,
or the offspring of fish, chelonians or other aquatic species for profit.”
months after sending them to the cooler, NMFS agents finally began to inspect
the locked-up lobster tails. Only about three percent of the lobster tails
turned out to be less than 5.5 inches long. Just seven percent showed any
evidence of having been egg-bearing lobsters. These small amounts belie
the suggestion that McNab or his employees were intentionally harvesting
young or egg-bearing lobsters. Nevertheless, prosecutors included these
regulations as predicates for alleged violations of the Lacey Act.
based on the size and egg-harvesting regulations would only allow NMFS
to seize the small portions of lobster tails that were under 5.5 inches
or showed evidence of bearing eggs. This, apparently, was not enough. Because
all the lobsters were in clear plastic bags instead of cardboard boxes,
the government declared the entire shipment illegal and formally seized
all 70,000 pounds of lobster tails.
prosecutors, not satisfied even with 35 tons of lobster, filed criminal
charges against McNab. The also charged three American businesspeople who
frequently purchased and distributed lobster tails from McNab. All charges
against McNab and most charges against the others were predicated on the
three Honduran regulations, applied through the Lacey Act. No charges were
ever brought against the defendants in Honduras. The alleged Lacey Act
violations served primarily to trigger more serious charges. If importing
the lobster in bags instead of boxes was illegal, prosecutors reasoned,
then planning to import it was criminal conspiracy, the actual importation
was smuggling, and payments became felony money laundering.
the District Court’s foreign law hearing, McNab presented copious
evidence showing that the Honduran regulations at issue were invalid. The
size restriction had never been signed by the President of Honduras, an
absolute requirement for such a regulation under Honduran law. The Attorney
General of Honduras supplied an opinion, confirming other testimony, that
because the size restriction was not signed it could never have had the
force of law.
presented other witnesses, including a former Honduran Minister of Justice,
who testified that the egg harvesting regulation was never intended to
apply to animals that happened to bear eggs when caught. The prohibition
against harvesting or destroying eggs for profit was meant to do just that,
to prevent the harvesting of eggs themselves (turtle eggs in particular).
prosecutors somehow convinced the court to ignore McNab’s extensive
evidence and instead accept the testimony of a single, mid-level Honduran
bureaucrat, Liliana Paz. For reasons that remain unexplained, the “Secretary-General” of
the Honduran Ministry of Agriculture and Livestock – an official
whose primary duty is to be “an instrument of communication” and
who has no expertise or authority to render legal opinions – boldly
testified that all the regulations were valid and had the force of law.
the obvious lack of criminal intent on the part of the defendants, as well
as concerns about the validity of the Honduran regulations, all four businesspeople
were convicted on a general verdict. In August 2001, McNab and two businessmen
were each sentenced to eight years in prison. The fourth defendant, a businesswoman
from New Jersey who resold seafood to restaurants like Red Lobster, was
sentenced to two years in prison.
government trumpeted the convictions in press releases that
labeled McNab “the ringleader of a smuggling operation.” The reports mislead
the public by suggesting that McNab was intentionally harvesting undersized
and egg-bearing lobsters, never mentioning that these were a tiny portion
of his catch. The government fails to note that the only reason for declaring
the entire shipment illegal was that it was packed in bags, not boxes.
In effect, the defendants were convicted of smuggling because they packed
lobster in clear plastic bags instead of opaque cardboard boxes.
A press release issued
by the National Oceanic and Atmospheric Administration (NOAA), the agency
that includes the NMFS, implies that McNab’s business success was
part of his wrongdoing. NOAA points out that McNab owns a “fleet
of vessels, each of which can deploy thousands of lobster traps,” as
if this, in itself, is somehow a wrongful act. Striking an even more bizarre
note, NOAA declares that “[t]he wealth from McNab’s vast harvest
was denied to the common citizens of Honduras.” McNab, a Honduran
citizen, is apparently not “common” enough for the Sandinistas
sentencing, the court was prepared to allow all four defendants to remain
free pending their appeals. Federal prosecutors objected to allowing a
foreigner like McNab to remain free on bond and the 11th Circuit Court
of Appeals sent him to prison. McNab is now in his fourth year of incarceration.
Appeal before the 11th Circuit, two of the three appellate judges effectively
declared Honduras a banana republic, unfit to construe its own laws. The Court
decided that it would be unwise to disagree with the prosecutors’ interpretation
of the foreign law, citing the “political question” doctrine.
This ignored the holdings of other Circuits and the proper role of appellate
courts in general. Even worse, the two judges asserted that Honduran officials
could not be trusted because they might be bribed or manipulated. Somehow
this failed to undermine the credibility of Ms. Paz, the mid-level Honduran
bureaucrat who testified for the prosecution. In the interests of “finality,” the
Circuit Court upheld the lower court on every issue, no doubt because if
just one of the three Honduran regulations was found to be invalid, all
of the convictions would fail.
decision of the 11th Circuit is only more troubling when considered in
light of the critical new evidence that emerged from Honduras during and
after the trial. After the foreign law hearing, McNab had filed an action
in the Honduran Court of First Instance of Administrative Law challenging
the size restriction. Several months after the end of the criminal trial,
the Honduran Court formally held that the size limit was void and declared
that it had never had the force of law.
attorneys also discovered that the law authorizing the packaging regulations
was repealed in 1995. Under Honduran law, a regulation is automatically
repealed when the authorizing statute is repealed. Even the prosecution’s
witness from the Honduran Ministry of Agriculture and Livestock admitted
this in an affidavit. It also became clear that the egg-harvesting provision
had been repealed in a way that, under Honduran law, operated retroactively.
additionally filed a motion before the Honduran National Human Rights Commissioner
challenging Ms. Paz’s testimony about Honduran law. The National
Human Rights Commissioner, Dr. Leo Valladares, is an internationally respected
constitutional lawyer and human rights advocate. His office in Honduras
is charged with addressing complaints that government officials’ actions
constitute “legal error.” Dr. Valladares issued a report, which
the Minister of Agriculture signed, stating that Ms. Paz’s testimony
constituted “an error of law.” The scholarly report found that
the packaging regulation was repealed in 1995, the size restriction had “never
had the force of law,” and that the egg-bearing provision had been
government of Honduras, through its embassy, directed all of this information
to the U.S. State Department, asking that they forward it directly to the
Department of Justice. The Attorney General of Honduras also filed an amicus
curiae brief with the 11th Circuit, providing this information and explaining
that McNab and the other businesspeople had not violated any Honduran law.
All of this was ignored by the Court of Appeals when they concluded that “finality” was,
apparently, more important than justice.
prosecution of four businesspeople for normal business activities highlights
the dangerous but growing trend to expand criminal liability against normal
social and economic conduct. Historically, a criminal conviction required
proof of criminal intent (mens rea; a guilty mind) in addition to the wrongful
infliction of harm (actus reus; a bad act). Even if the Honduran statutes
had not turned out to be uniformly invalid, there was never any evidence
that showed the businesspeople acted with criminal intent. Rather the evidence
seems to prove that they were simply engaged in catching and selling seafood
in a way that any businessperson would consider lawful.
prosecution also reveals the risks of federalizing criminal law. Observers
have long warned against allowing the federal government to encroach on
the traditional state function of enacting and enforcing general criminal
laws. Here, the federal government, through the Lacey Act, claims to enforce
foreign laws against foreign and U.S. citizens. These regulations were
not made by the U.S. Congress or by some executive agency, but by a foreign
government with unfamiliar procedures. If the government of Honduras had
actually believed these regulations to be valid, they were free to bring
charges. Instead, the U.S. government prosecuted a case on what turned
out to be bad law.
of the four defendants was trying only to earn a living through normal
commercial activity when an anonymous accusatory fax sent the U.S. government
to destroy their lives. David McNab waits in prison to see if his appeal
to the court of last resort will even take
the case. Three other businesspeople wait anxiously for the decision
that could save them or send them to prison for years.